The Soft Evidence Behind the Hard Rhetoric of ‘Deterrence’

In the small city of Rome, Ga., in 1986, a retired schoolteacher named Queen Madge White was strangled to death by a young man who broke into her home. After his girlfriend turned him in to the police, Timothy Foster confessed to the crime. Foster lived in a housing project a few blocks from his victim. He was 18 and black. She was 79 and white. Choosing the jury that would decide whether Foster deserved to be executed, the prosecutors sent home four potential black jurors. They gave reasons that they said were unrelated to race, as the Supreme Court requires, but that seem unconvincing. The prosecutors said they struck one black woman from the jury because, at 34, she was too close to Foster’s age. They said they excluded a black man because his wife worked at a hospital. But so did a white woman who was asked to sit on the jury, which, in the end, was entirely white.

In early November, the Supreme Court will hear Foster’s appeal, to address whether he should have a new trial because racial bias infected the selection of jurors — and ultimately their decision to vote for execution. Since then, the prosecutors’ notes for jury selection have come to light. The names of the black prospective jurors were marked with a B and highlighted in green. ‘‘If it comes down to having to pick one of the black jurors, Ms. Garrett might be O.K.,’’ an investigator for the prosecution wrote of the 34-year-old woman. Foster’s new lawyers say the prosecution wanted an all-white jury that would respond to its closing plea: to sentence him to death ‘‘to deter other people out there in the projects,’’ where 90 percent of the residents were black.

The prosecution’s use of ‘‘deter’’ before the jury was deliberate. Americans were familiar with the Cold War meaning of the word: to contain Soviet aggression. The prosecution invoked it to make an argument for containing crime, which was then on the rise in White’s neighborhood and across the country. As politicians competed to show their determination to protect the public, ‘‘deterrence’’ was positioned as the respectable rationale for cracking down on criminals. Proponents used the dry, dispassionate terms of economics to describe robbers, drug dealers and murderers as ‘‘perfectly rational men and women’’ responding to lenient sentencing that made the cost of committing crimes ‘‘shamelessly cheap,’’ as Senator Phil Gramm of Texas wrote in a Times Op-Ed article in 1993. Gramm, a Republican, used the language of deterrence to crusade for mandatory minimum sentences for drug offenders: ‘‘When a potential criminal knows that if he is convicted he is certain to be sentenced, and his sentence is certain to be stiff, his cost-benefit calculus changes dramatically.’’

Today, the conversation about deterrence has become far more contested, because of the social and fiscal costs of mass incarceration. In October, the Justice Department announced it would free 6,000 nonviolent drug offenders who were behind bars, often because of the mandatory minimum sentences that Congress was eager to pass in Gramm’s day. Freeing prisoners has for decades been seen as politically perilous, but now there is increasing bipartisan agreement that lengthy sentences are used too fre­quently. Perhaps the country has hit a limit for ratcheting up punishment in the name of deterrence.

As it turns out, deterrence was not originally intended as an argument for harsh punishment. ‘‘Deter’’ comes from the Latin for ‘‘to frighten or discourage from.’’ ‘‘Deterrent’’ first appeared in English in 1829, in a book about punishment by the British philosopher Jeremy Bentham, the father of utilitarianism. He believed that a law’s success could be measured by whether ‘‘the desired effect is produced by the employment of the least possible suffering.” Punishment should be swift, certain and severe enough to achieve deterrence — but not more severe than necessary.

In the United States, the crime rate has fallen significantly since the early 1990s. But according to a 2014 review by the National Research Council, the threat of lengthy sentences has had little impact. Actually locking up more people does account for a modest portion of the drop in crime, the review found. But even ‘‘incapacitation’’ plays only a limited role in explaining the decline in crime of the last two decades. ‘‘If you keep throwing people in prison, you run out of the most dangerous guys, and you start suffering from diminishing marginal returns,’’ says Franklin Zimring, director of the criminal-justice-studies program at the University of California, Berkeley.

Deterring bad behavior is a goal that necessarily exists alongside other objectives, like proportionality in punishment and safeguarding basic rights. Comparing capital punishment with life in prison, Bentham weighed the fact that the pain of execution was usually borne by the poor, and that it was a form of punishment that could not be undone. By the end of his life, he declared the death penalty excessive, even for those who committed murder.

In the modern era, researchers have measured murder rates in states before and after executions, or the enforcement of stricter death-penalty laws. The studies have produced wildly varying results: The death penalty has been associated with fewer murders, more murders and no change at all. Reviewing more than 30 years of research in 2012, the National Research Council declared the studies too flawed to ‘‘influence policy judgments about capital punishment.’’

Last summer, Justice Stephen Breyer called for the Supreme Court to revisit the death penalty’s constitutionality. He cited the council’s conclusion and asked, rhetorically, ‘‘Does it still seem likely that the death penalty has a significant deterrent effect?’’ Justice Antonin Scalia batted aside Breyer’s misgivings, writing, ‘‘Let the people decide how much incremental deterrence is appropriate.’’ Is that answer good enough, or are some kinds of deterrence outside legal and moral bounds?

Other judges have recently wrestled with the Obama administration’s use of deterrence in responding to the influx of immigrants from Central America. Thousands of them are mothers and children seeking asylum. In the past, families like these were often released inside the United States while they waited for their claims to be heard. Last year, however, the government began placing mothers and children in camps — not because they posed a danger or a flight risk, but to deter more immigration. Stemming the tide had ‘‘national security consequences,’’ an immigration official said in a statement submitted in court.

And yet the government has lost twosuits on behalf of detained families. The state can’t deprive people of liberty ‘‘for the sake of sending a message of deterrence,’’ a judge wrote in February. The fault line here, Scott Shapiro, a law and philosophy professor at Yale, points out, is the same one that runs through debates over self-defense, or the laws of war: ‘‘When do we have the right to impose costs on other people in order to protect ourselves?’’

Sometimes the language of deterrence does more to obscure the answer than to reveal it. If you want to fully explain the crime drop of the last 20 years, you have to look outside the prison gates. You have to consider the number of police officers per capita and changes in policing strategies, and then you have to think beyond law enforcement, toward housing, employment, wages and education. Deterrence is unassailably part of the calculus for doing justice. But it can never be the whole.

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